Capital punishment already dead in Md., some prosecutors say

ANNAPOLIS — A bill that would repeal the death penalty in Maryland appears to have the votes needed to clear the Senate, adding momentum to Gov. Martin O’Malley and proponents’ push for repeal.

But some prosecutors and other death penalty supporters say a repeal would only make official what is already true: Capital punishment doesn’t really exist in Maryland. The state has one of the most restrictive death penalty laws in the country.

Combine that with bureaucratic opposition from the governor and judges’ reluctance to impose the ultimate penalty, and even the most violent criminals are not likely to ever be executed, some say.

“I don’t want them to ever have the opportunity to do it again,” said Sen. Kathleen Klausmeier, D-Baltimore County, a supporter of the death penalty. “But as far as I’m concerned,” she said, “the death penalty doesn’t happen here in Maryland anyway.”

State’s Attorney John McCarthy of Montgomery County said he’s reluctant to even file a death penalty notice because he sees the existing statute as a form of deception.

“If you are a prosecutor and think it’s nice to have it as an option, you don’t really have it as an option,” said McCarthy, adding that he and his predecessor, current Attorney General Douglas F. Gansler, never pursued the death penalty in Montgomery County.

“The reality is that it will never be carried out (in Maryland),” McCarthy said. “I will not talk to victims’ families about the death penalty because it’s not fair to a victim’s family. It’s not achievable.”

Currently there are five people on death row in Maryland. Another five have been executed since 1976.

Baltimore County State’s Attorney Scott Shellenberger is a vocal supporter of the death penalty and said that despite being written into law, “the death sentence has not been imposed as it should have been over the past years.”

He referenced a 2011 case in Baltimore County involving an Essex man, Walter P. Bishop Jr., who was hired as a contract murderer by Karla Porter to kill her husband, William Porter. Bishop fatally shot Mr. Porter for a sum of $9,000.

Contract murders fall under the umbrella of aggravating factors — which also include killing a police officer or killing two or more people in the same event — needed for the death penalty. Police also obtained a video of Bishop confessing to the crime, which made him eligible for the death sentence under the statute revised in 2009.

That legislation requires DNA evidence, a videotaped confession or video evidence of the crime.

Bishop was sentenced to life with the possibility of parole. The jury believed his lack of prior criminal convictions outweighed the state’s request to impose the death sentence.

Washington County State’s Attorney Charles Strong — also a longtime supporter of the death penalty — believes that prison sentences come down to judges’ discretion, but that an additional limitation of the current death penalty law is the hole in the lethal injection methods used during execution.

“The governor has refused to do the stage that is necessary to implement the drug protocol,” Strong said. “The current method for execution involves the use of three drugs in the lethal injection, however, one of the three is not available for use.”

An anesthetic used in executions — sodium thiopental, or Pentothal — is no longer available in the United States, and O’Malley has not put forth a new protocol.

“Even if you get (the death penalty), you can’t kill him,” Strong said.

Regardless of the methods used, no one has been executed in Maryland in roughly seven years, despite the state’s potential to have legally done so.

In 2006, a man killed a correctional officer in Hagerstown while attempting to escape from prison.

The Howard County Circuit Court judge in the case cited mitigating factors — the convicted murderer, Brandon T. Morris’ troubled childhood — and in 2008, spared him the death penalty, opting to instead sentence him to life without parole.

Also in 2006, an inmate, Lee Edward Stephens, brutally stabbed and murdered a correctional officer in Jessup. Last year, he was sentenced to life without parole.

Several state’s attorneys feel Maryland simply does not have the stomach for the death penalty, and are convinced that the days for the death penalty in Maryland have been numbered for quite some time.

McCarthy likened the repeal to a glacier that has been moving over the years.

“It’s where the leadership — the governor, House and Senate — are taking us,” McCarthy said.

Proponents of the repeal of the death penalty often cite the expensive price of execution as a major flaw of the current statute.

“The death penalty is expensive, and it does not work and we should stop doing it,” O’Malley said, during his State of the State Address.

Earlier this week, Sen. John C. Astle, D-Anne Arundel, and Sen. Ronald N. Young, D-Frederick, joined the governor, 21 co-sponsors of the bill and two other senators who are pushing to pass the repeal legislation this session. That’s enough votes to get the legislation passed in the Senate, where it has failed in the past.

Senate President Thomas V. Mike Miller Jr., D-Calvert, agreed to allow the bill to come out of committee and be debated on the floor if the governor could show he had enough affirmative votes in the Senate.

However, defenders of capital punishment believe the costs of incarceration are much more severe.

Robert Di Stefano, who served in the Baltimore Police Department for 33 years and has been retired for 16, said if death penalty cases were handled as “one appeal, one shot,” they would no longer be excessively costly.

“We have people dying of old age on death row,” Di Stefano said, about the lengthy appeals process that can span over decades. “And the public has to pay to maintain them for 30 or 40 years.”

The appeals process can take decades, as evidenced by the cases of two men currently on Maryland’s death row — Anthony Grandison and Vernon Lee Evans — who were convicted in 1984 for a murder-for-hire case in Baltimore County.

Di Stefano believes the real costs come from the appeals, not the means.